New Jersey Appeals Court Considers Facebook Ethics CaseOct 20, 2014
The use of Facebook to obtain information about a plaintiff in the midst of litigation has led to jurisdictional dispute, New Jersey Law Journal reports. On October 14th, a New Jersey appeals court heard arguments over whether or not the Office of Attorney Ethics is able to file grievances against attorneys after the district ethics committee decided against it. The three-judge Appellate Division panel, which was comprised of Presiding Judge Jack Sabatino and Judges Marie Simonelli and George Leone, is even questioning whether they have the authority to rule on this matter.
The dispute stems from a personal injury lawsuit over an automobile injury. The incident took place in March 2007, when an 18-year old male was struck by a police cruiser while doing push-ups in the driveway of the borough of Oakland, New Jersey firehouse. He suffered a fractured femur, and underwent several surgeries.
Allegedly, attorneys for the defense instructed a paralegal to “friend” the man on Facebook to view information not available to the public. The plaintiff's attorney said the use of Facebook information was discovered when the defense attorneys asked the plaintiff questions about travel, dancing and other activities that would appear to undermine his injury claims. Later on, the defense used conversations, photos and a video from the plaintiff's Facebook page to accompany amended answers to these inquiries. The use of Facebook evidence was barred by Bergen County Superior Court Judge Rachelle Harz because it was produced after the deadline discovery had passed. The plaintiff received a $400,000 settlement in 2010.
The plaintiff and his attorneys filed an ethics grievance with the district ethics committee over the use of Facebook evidence. The grievance was reviewed by District II-B Ethics Committee secretary Doris Newman, who concluded that it did not state fact constituting unethical conduct. Afterwards, the plaintiff's attorney asked OAE director Charles Centinaroto review the case. Centinaro came to a different conclusion.
According to the formal OAE complaint filed Nov. 16, 2011, a paralegal at the defense's firm was able to view the plaintiff's Facebook page until he changed his privacy settings and only allowed his friends to view the information. When this occurred, the paralegal sent him a friend request, and he accepted.
The defense attorneys “are charged with violating RPC 4.2, for communication with a represented party; 5.3(a), (b) and (c), for failure to supervise a nonlawyer; 8.4(c), for conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations; and 8.4(d), for conduct prejudicial to the administration of justice.” New Jersey Law Journal reports. The lawyers claim that they asked the paralegal to monitor the page, but never asked to friend him. Both said they were unfamiliar with Facebook and claimed they did not know the difference between public and private settings.
A lawyer representing the defense attorneys is opposing the complaint, stating that once a local committee chooses not to act a grievance, it is not subject to appeal. The Assistant Attorney General representing the OAE countered that the complaint was not an actual appeal, and stated the OAE director has the right to investigate these matters if he sees fit. Also discussed was whether or not it was appropriate for the panel to rule on the issue. Attorneys for the defense lawyer argued that the matter should be handed by the Superior Court and Appellate Division, but the OAE attorney said it was not the right venue for deciding attorney discipline.